929 F.

2d 610
32 Fed. R. Evid. Serv. 1212

UNITED STATES of America, Plaintiff-Appellee.

v.
Ovidio CAMEJO, Luis Rivera-Torres, Livingston K. Smith,
Luis
F. Setien, Raul Anchia, Defendants-Appellants.
No. 89-5707.

United States Court of Appeals,

Eleventh Circuit.
April 22, 1991.

Jeffrey S. Weiner, Miami, Fla., for Camejo.

Russell K. Rosenthal, Coral Gables, Fla., for Smith.
Charles G. White, Miami, Fla., for Setien.
Benjamin S. Waxman, Jefrey S. Weiner, Miami, Fla., for Anchia.
Victor Martinez, Bruce Kessler, Asst. Federal Public Defenders, Miami,
Fla., for Rivera.
Dexter W. Lehtinen, U.S. Atty., Phillip DiRosa, Mayra R. Lichter, Linda
Collins Hertz, Miami, Fla., for U.S.
Appeals from the United States District Court for the Southern District of
Florida.
Before TJOFLAT, Chief Judge, EDMONDSON Circuit Judge, and
DYER, Senior Circuit Judge.
DYER, Senior Circuit Judge:

Five defendants, who were employees of Eastern Airlines, appeal their

convictions of conspiracy to import and to possess with intent to distribute

cocaine. The multiple assertions of error in the trial below do not raise any
grounds which require reversal. We affirm the convictions.
BACKGROUND
2

Ruy Martinez, an Eastern Airlines baggage handler at the Miami International

Airport, organized a scheme to smuggle cocaine from Colombia through the
use of incoming commercial flights to be off-loaded in Miami. Between 1982
and 1984, large quantities of cocaine loaded into suitcases were delivered into
the airport, hidden in various aircraft compartments. In the smuggling
operation, Martinez used the services of baggage handlers and supervisors.
Martinez paid the individuals for their participation after each flight where
cocaine was off-loaded. Each individual performed a specific task to
accomplish removal of the luggage from the designated incoming flights and its
delivery through the airport. The supervisors who were involved either made
sure that baggage containing cocaine on Eastern flights was always off-loaded
by the crews of conspirators or kept non-conspirators away from aircraft during
crucial times. Martinez' crew used baggage carts to deliver the contraband to
Frank Bascaus, an agent of Mexicana Airlines, who would move the cocaine
through the airport using an elevator.

Each appellant participated in this scheme along with a number of other

baggage handlers recruited by Martinez. Raul Anchia's role was to work inside
the aircraft removing the cocaine-filled suitcases from their hiding places.
Anchia earned $15,000 to $30,000 per flight. Luis Setien, as lead man on a
ramp, was responsible for directing his crew of baggage handlers toward the
aircraft to be unloaded and supervising his crew as cocaine-filled suitcases were
off-loaded. Initially, Setien had been paid $5,000 per flight for his silence
regarding the conspiracy once he discovered what the others were involved in.
Later, his active participation increased and he was paid $10,000 per flight by
Martinez. Ovidio Camejo was a tractor driver in the vicinity of the off-loading
operations. He created diversions when customs agents or non-conspiring
supervisors presented a threat to the activities. Martinez paid Camejo $4,000 to
$5,000 for each flight in which he participated. Luis Rivera-Torres worked
inside the aircraft, removing cocaine-filled suitcases, and then passed the
suitcases to drivers to be taken through the airport. Martinez paid Rivera-Torres
$20,000 to $30,000 each time he performed these tasks. Livingston K. Smith
was a transfer-point driver who delivered baggage from carts at the changepoint for continuation on domestic flights. The normal loading procedure
worked as a cover and at times functioned to create a diversion. Smith received
$2,000 on one occasion from Martinez' wife, and admitted the receipt of
payments on a few occasions for moving baggage in connection with Eastern

flights.
4

Charges were brought against all of the known participants: Count 1 for the
importation of cocaine and Count 2 for possession with intent to distribute
cocaine. Guilty pleas were entered by 12 co-defendants. Three co-defendants
were acquitted. Anchia, Camejo and Rivera-Torres were found guilty of both
counts. Smith and Setien were found guilty of conspiracy to import.

SETIEN
Prior Acts of Good Conduct
5

Setien's witness Max Mermelstein made a proffer of his testimony outside the
presence of the jury. He testified that during the period that Setien was accused
of having been involved in the cocaine importation conspiracy, they met
regularly as social friends. During that time, Mermelstein was involved as a
high level importer and distributor of cocaine throughout the United States. He
offered Setien the lure of easy money if he would quit his job as an Eastern
Airlines baggage handler and just hang around Mermelstein while he conducted
his narcotics business. Setien refused to involve himself in the narcotics
business and repeatedly reminded Mermelstein of the damage he was doing to
society.

The government filed a motion in limine objecting to Mermelstein's proffered

testimony, on the ground that individual acts of good conduct cannot be
permitted to demonstrate good character.

Setien argues that one of the essential elements of the offense charged was his
mens rea during the time he was alleged to have agreed to join this conspiracy,
and that Mermelstein's offer was relevant to show he was offered an
opportunity to do the same thing and refused. The court ruled that the
testimony was irrelevant under Rule 405(b) and was not admissible under Rule
404(b). We agree.

Evidence of good conduct is not admissible to negate criminal intent.

Michelson v. United States, 335 U.S. 469, 477, 69 S.Ct. 213, 219, 93 L.Ed. 168
(1948); United States v. Russell, 703 F.2d 1243, 1249 (11th Cir.1983).
Mermelstein's proffered testimony was merely an attempt to portray Setien as a
good character through the use of prior "good acts". The trial judge properly
exercised his discretion in excluding this testimony as inadmissible character
evidence.

Sufficiency of Evidence
9

"To determine whether sufficient evidence supports the convictions, we must

view the evidence in the light most favorable to the prosecution and decide
whether a reasonable fact finder could have reached a conclusion of guilt
beyond a reasonable doubt." United States v. Perez, 922 F.2d 782 (11th
Cir.1991) (citing United States v. Sanchez, 722 F.2d 1501, 1505 (11th Cir.),
cert. denied, 467 U.S. 1208, 104 S.Ct. 2396, 81 L.Ed.2d 353 (1984)).

10

Setien submits that the finding of the jury that he was not guilty of conspiracy
to possess the cocaine as it was being moved through the airport (count 2),
eliminates the evidence so rejected from being considered on the conspiracy to
import (count 1) and leaves his only participation the acceptance of "hush"
money. Thus, Setien argues that when he decided not to "blow the whistle" on
the operation, he was not entering into an agreement to import cocaine, he was
merely agreeing not to report the existence of the criminal conspiracy to the
authorities and that the benefit to the conspiracy was merely an incident of that
separate agreement.

11

This argument is unpersuasive. The jury undoubtedly believed that Setien's

involvement in the conspiracy to import ended after the drugs were taken off
the aircraft and that he had nothing to do with the conspiracy to possess the
cocaine with intent to distribute it. See United States v. Johnson, 889 F.2d 1032,
1035 (11th Cir.1989) (per curiam). Our review is limited to whether the
evidence is sufficient to support the guilty verdict returned by the jury as to
Setien's participation in the conspiracy to import cocaine. Id.

12

Even if Setien's only involvement in the conspiracy was accepting hush money,
he would be guilty of conspiracy to import cocaine. Proof that a conspiracy
existed, and that Setien knew of its existence is overwhelming. Setien clearly
understood the objectives of the conspiracy and that he would benefit
monetarily from the successful goal of the conspiracy. This is not "mere
presence" or "mere association"; this is an act from which the jury could infer
an intent to participate in an unlawful enterprise. United States v. Catchings,
922 F.2d 777 (11th Cir.1991) (per curiam); United States v. Jackson, 700 F.2d
181, 185 (5th Cir.), cert. denied, 464 U.S. 842, 104 S.Ct. 139, 78 L.Ed.2d 132
(1983); United States v. Hawkins, 661 F.2d 436, 453-54 (5th Cir. Unit B 1981),
cert. denied, 456 U.S. 991, 102 S.Ct. 2274, 73 L.Ed.2d 1287 (1982).

13

But Setien did more than simply accept hush money. He was paid as much as
$10,000 each time a cocaine flight was off-loaded. He was the lead man in his

crew and physically supervised baggage handlers on his crew. On some

occasions he acted as a lookout while other conspirators actually unloaded the
cocaine from the aircraft. The jury could reasonably infer that Setien's action in
supervising his crew as it unloaded contraband and in acting as a lookout were
knowing and intentional acts of participating in the conspiracy. United States v.
Gordon, 712 F.2d 110, 114 (5th Cir.1983); United States v. Diaz, 655 F.2d 580,
584 (5th Cir. Unit B 1981), cert. denied, 455 U.S. 910, 102 S.Ct. 1257, 71
L.Ed.2d 448 (1982). See, e.g., United States v. Pareja, 876 F.2d 1567, 1570
(11th Cir.1989); see also United States v. Pui Kan Lam, 483 F.2d 1202, 1208
(2nd Cir.1973), cert. denied, 415 U.S. 984, 94 S.Ct. 1577, 1578, 39 L.Ed.2d
881 (1974) (acting as a lookout).
Theory of Defense Jury Instruction
14

Setien's theory of defense instruction is based upon his argument that mere
acceptance of hush money is not legally sufficient to convict him of importation
of cocaine. The trial judge refused to give the instruction as not supported by
the facts or by law.

15

A refusal to give a requested theory of defense instruction is reversible error

only if the requested instruction "(1) was correct, (2) was not substantially
covered by the court's charge to the jury, and (3) dealt with some point in the
trial so important that failure to give the requested instruction seriously
impaired the defendant's ability to conduct his defense." United States v. Benz,
740 F.2d 903, 910 (11th Cir.1984), cert. denied, 474 U.S. 817, 106 S.Ct. 62, 88
L.Ed.2d 51 (1985).

16

For the reasons we have already stated, the proposed instruction is legally
incorrect. Moreover, in addition to this receipt of hush money there was
evidence that Setien acted as a lookout and supervised his crew's unloading of
aircraft containing cocaine. Requested instructions on a theory of defense need
not be given unless there is some foundation in the evidence for the proposed
instruction. See United States v. Gold, 743 F.2d 800, 819 (11th Cir.1984), cert.
denied, 469 U.S. 1217, 105 S.Ct. 1196, 84 L.Ed.2d 341 (1985); United States v.
Terebecki, 692 F.2d 1345, 1351 (11th Cir.1982).

17

The requested instruction is Setien's version of the facts, and is more of a jury
argument than a proper theory of defense instruction. It was properly denied.
See United States v. Russell, 717 F.2d 518, 521 (11th Cir.1983).

Other Claimed Errors

18

Setien argues that there was error in admitting financial evidence against him,
and there was error in permitting the government to argue facts not in evidence
relating to the financial evidence. A careful review of the record convinces us
that Setien's arguments are without merit.

ANCHIA
Court's Ex Parte Voir Dire of Juror
19

On the second day of deliberations juror Delay failed to appear in court as

scheduled. At the direction of the court a United States Marshal located her at
her home and accompanied her back to the courthouse. The trial judge held an
ex parte conference with her to determine the cause of her tardiness. Ms. Delay
explained that she had been awake until very late the night before to be in the
company of her girlfriend who had been battered by her husband. She described
it as a terrible night that was upsetting. Nevertheless, she was emphatic that she
was physically and mentally able to proceed as a juror, and, in fact, thought she
should serve.

20

After the jury began deliberating, the court had the ex parte conference
transcribed and immediately had the transcript read to all counsel. The
defendant moved for a mistrial, or for the substitution of an alternate juror
based on the exclusion of defense counsel from participation in the voir dire of
the juror, and their belief that due to the juror's experiences of the night before,
she was unable to carry out her full responsibilities in deliberating with the
jury.1 The court denied the motion finding there had been no prejudice from the
inquiry and that the juror was fully capable of deliberating fairly.

21

The district court wisely had the in camera proceeding transcribed as was done
in United States v. Yonn, 702 F.2d 1341 (11th Cir.), cert. denied, 464 U.S. 917,
104 S.Ct. 283, 78 L.Ed.2d 261 (1983), in order to "minimize the possibility of
prejudice, by enabling the reviewing court to examine carefully whether any
harm resulted from the ex parte contact between the judge and juror[s]." Id. at
1345. The harm done in this case, the defendants argue, was that the judge's
voir dire of the juror was superficial and inadequate to uncover the bias and
prejudice the juror may have developed. They rely on inferences that might be
drawn from the juror's lack of sleep, the unknown effect of the cause of the
domestic violence of the girlfriend and her husband, the possible use of drugs
by the husband, and whether the husband was a Latin like the defendants.
These and other questions, they argue, were proper to delve into by the
defendants' cross-examination of the juror.

22

The short answer to this argument is that it amounts to no more than

speculation and conjecture and has no support in the record. There is no
suggestion that the juror's experiences of the night before with her girlfriend
distracted her from her responsibilities, or could have possibly influenced her
fairmindedness, or provided a natural motivation to conclude the jury's
deliberation prematurely. See Smith v. Kelso, 863 F.2d 1564, 1572-73 (11th
Cir.), cert. denied, 490 U.S. 1072, 109 S.Ct. 2079, 104 L.Ed.2d 644 (1989). In
fact, the sole ground stated in the district court in support of this motion for a
mistrial was that the juror was in no state of mind to fairly and impartially
consider the defendants' guilt or innocence. The recitation in this court of what
the defendants might have elicited from questioning the juror was neither
submitted to nor argued to the trial judge.

23

Finally, the defendants exhort us to adopt a rule that absent consent of counsel,
in camera examination of jurors should not be conducted by a trial judge
without, at least, the presence of counsel. We decline this invitation to erode the
court's discretion by such a blanket rule. Here the trial judge adopted the better
approach in following what this court said in United States v. Caldwell, 776
F.2d 989, 997 (11th Cir.1985):

24 see no prejudice, and perhaps even some benefit, to be gained by the

[W]e
defendants from their absence during the questioning of juror Campbell. Had the
appellant actually been present and had counsel taken an active role in the
questioning, it would have put the juror and the defendant in an adversarial posture,
which could have an adverse effect on a juror.... Consequently, we find the
appellant's absence from the proceeding did not result in prejudice to his due process
rights, and any technical violation of Rule 43 was rendered harmless by the
precautions taken by the district court.
25

There was no abuse of discretion in the judge's ex parte inquiry to ascertain the
cause of the juror's tardiness in attending court. Nor do we find any prejudice
resulting from that procedure. United States v. Adams, 799 F.2d 665, 667-68
(11th Cir.1986), cert. denied, 481 U.S. 1070, 107 S.Ct. 2464, 95 L.Ed.2d 873
(1987).

Prosecutor's Closing Argument

26

In his closing argument, the prosecutor pointed out the government's evidence
of the defendant's unexplained wealth. The defendant had offered evidence that
$16,000 of the money deposited in his account came from the sale of a truck in
Houston, Texas and argued this to the jury. The prosecutor countered this by
arguing that the so-called sale of the truck was a sham, that the money was

paid to him by a co-conspirator. He argued that it was not reasonable for the
jury to believe that the defendant could buy a truck for $12,000, use it for two
years hauling sand and gravel over dusty roads and re-sell it later for $16,000.
The defendant contends that he showed the prosecutor a letter from the Alvin
State Bank in Houston which purportedly described the sale of the truck to a
person named Mayor, and this being so, the government's closing argument
was improper and prejudiced the defendant's right to a fair trial.
27

The defendant did not offer the letter in evidence. It is not a part of the record
before us. We are in no position to pass upon its authenticity or contents as
corroborating evidence of the defendant. Butterworth v. Bowen, 796 F.2d 1379,
1387 (11th Cir.1986); Lee County Branch of NAACP v. Opelika, 748 F.2d
1473 (11th Cir.1984); Int'l Business Machines Corp. v. Edelstein, 526 F.2d 37,
45 (2nd Cir.1975). The government cannot be faulted for the failure of the
defendant to make a record, nor can it be censored for arguing the evidence
established by it without reference to a document that was not offered in
evidence.

28

The government also offered evidence of unexplained wealth by introducing a

wire transfer of $4,000 to the defendant by his wife while he was vacationing in
Europe where he spent $8,000 in charges. The defendant contends that the
prosecutor should not have argued in summation that the defendant's wife wired
him the money from Miami to Rome because their passports showed that she
accompanied him on the trip and the passports were shown to the government.
The passports were not offered in evidence and no proffer was made. They are
not a part of the record and are not before us. We decline to consider matters
dehors the record. Hassenflu v. Pyke, 491 F.2d 1094 (5th Cir.1974) (per
curiam). In any event, whether or not the defendant's wife went to Europe with
him is of no moment since the fact remains that he spent $8,000 on a European
vacation. The prosecutor's argument did not affect the substantial rights of the
defendant.

Evidence of Uncharged Misconduct

29

Defendant Anchia complains that the government's witness Washington

implicated him in a cocaine importation that occurred on July 6, 1983 in spite
of the government's discovery response that these conspirators did not import
cocaine into the United States on that date.

30

During the government's examination of witness Washington, he started to

testify concerning an involvement of Anchia in the importation of cocaine in
July 1983. After a sidebar, the prosecutor limited his questions to the unloading

of cocaine by Anchia "from any flights on times other than July 6, 1983." The
witness responded that he had observed Anchia on two or three occasions
unloading cocaine from flights during the year 1983, although he could not
remember the month. Defense counsel did not object to this testimony. The
government took pains to avoid questioning the witness concerning uncharged
misconduct. The evidence was properly before the jury.
CAMEJO
31

Defendant Camejo moved to strike the testimony of government witness

Washington concerning the importation of cocaine on July 6, 1983, because the
court had excluded such evidence under Rule 404(b). After the witness began
to testify, the court excused the jury and directed the witness to base all of his
testimony on events other than the July 1983 incident.

32

On cross-examination, Washington testified that he did not see Camejo

participate in a cocaine transaction other than one time in July 1983. Camejo's
motion to strike this testimony was denied. The motion should have been
granted. A fair reading of the record leads to the conclusion that according to
one government witness, Martinez, Camejo had been involved in only one
narcotics transaction, occurring on July 6, 1983. Since the government had
dismissed that allegation against Camejo, the witness's references to the event
should have been stricken. However, we find this to be harmless error
considering the overwhelming evidence of the guilt of Camejo.

33

That Camejo was a member of the conspiracy, knew about the unlawful
importation of cocaine and took an active part in it can hardly be disputed. He
talked with co-conspirators on numerous occasions about the conspiracy and
how it was being carried on. He was the driver of carts around the airport to
make sure that customs agents and other non-conspirators would not interfere
with the conspirators' off-loading of the cocaine from the airplanes by blocking
the area from view, and, if necessary by creating a diversionary disturbance. He
was involved in the conspirator's operations about twenty-five times and was
paid $3,000 to $4,000 each time. There was evidence from which the jury could
have found that Camejo loaned his company $100,000. We find that there is no
"reasonable possibility that the evidence complained of might have contributed
to the conviction." United States v. Reed, 700 F.2d 638, 646 (11th Cir.1983)
(quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11
L.Ed.2d 171 (1963)).

34

We have considered Camejo's argument that the district court abused its
discretion by denying his motion to exclude testimony of his financial status

and find that it is without merit.

SMITH
Motion for Severance
35

The government introduced in evidence without objection a book with the

names and telephone numbers kept by the lead conspirator and government
witness, Martinez. He testified that he kept the book in case he had to contact
his co-conspirators in connection with the conspiracy. The book contained
Smith's name and his mother's telephone number, but did not include the name
of alleged co-conspirator Astiazarian or his number.

36

The prosecutor's closing argument pointed out the fact that Martinez recorded
the number of Smith's mother so that Martinez could contact Smith. Counsel
for co-defendant Astiazarian in his closing argument emphasized the fact that
his client's name did not appear in Martinez' book and argued that "if it's
[Astiazarian's name] in there [the book] you find him guilty because then he
would have been part of the conspiracy. That would have corroborated it."
Further, he stated, "[his name] is not in there because he wasn't part of the
conspiracy".

37

At the end of the closing arguments, Smith moved for a severance because the
focus of his co-defendant's counsel's argument was that the book was
essentially a roster of those involved in the conspiracy. Therefore, those not in
the book were not involved in the conspiracy, and those in the book were
members of the conspiracy and should be convicted. The court denied the
motion.

38

Smith insists that his motion for severance should have been granted because
co-defendant's, Astiazarian, counsel's argument prejudiced Smith by a negative
inference. Smith relies on United States v. DeVeau, 734 F.2d 1023 (5th
Cir.1984), that by taking an adversarial stance on the part of co-defendant's
counsel, that tactic generated prejudice to him as to deny him a fair trial. In this
case, the court found that a severance was not warranted.

39

Neither Astiazarian nor Smith testified, and neither put on evidence implicating
the other. Smith was not mentioned in his co-defendant's argument to the jury.
Moreover, co-defendant Alonso, whose name and telephone number also
appeared in the book, was acquitted. The court properly instructed the jury on
three occasions that statements of counsel are not evidence.

40

In United States v. Lee, 744 F.2d 1124, 1126 (5th Cir.1984), the court
succinctly stated:

41 severance decision is reviewed under an abuse of discretion standard, and to

"The
prove an abuse the defendant undertakes the considerable burden of proving 'that he
received an unfair trial and suffered compelling prejudice against which the trial
court was unable to afford protection' ". (Citations omitted).
42

Examination of the record in this case convinces us that Astiazarian's counsel

simply cannot be cast in the role of a second prosecutor. His argument to the
jury was directed toward establishing Astiazarian's innocence, not toward
damning Smith.

43

The substantial evidence supporting Smith's conviction indicates that the trial,
as a whole, was fair and Smith was not exposed to compelling prejudice against
which the district court was unable to afford protection.

44

Finally, Smith asserts error in the admission of a statement against interest

made by him, and the prosecutor's mischaracterization of evidence against him
in closing argument. We find no merit to either contention.

RIVERA-TORRES
45

Torres argues that the evidence was insufficient to sustain his conviction, thus
the district court erred in denying his motion for acquittal. He contends that the
government's witnesses' contradictory statements and motives made them
inherently unreliable. "To determine whether sufficient evidence supports the
convictions, we must view the evidence in the light most favorable to the
prosecution and decide whether a reasonable fact finder could have reached a
conclusion of guilt beyond a reasonable doubt." United States v. Perez, 922
F.2d 782 (11th Cir.1991).

46

The evidence against Torres was not only adequate to establish him as an active
conspirator at the heart of the conspiracy, but was compelling.

CONCLUSION
47

The judgment of conviction of each defendant is affirmed.

48

AFFIRMED.

All of the other defendants joined in the motion for mistrial